United States v. Bert

¶4T.G. NELSON, Circuit Judge.

¶5Lamance Cookie Bert (Bert) appeals his convictions under three counts of possession of a controlled substance with intent to distribute. The Government cross-appeals Bert’s sentence under one of the counts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm with regard to Bert’s appeal. However, we vacate Bert’s sentence and remand for re-sentencing on the Government’s cross-appeal. In this opinion we address only the Government’s cross-appeal. We address the issues Bert raises on appeal in a contemporaneously filed unpublished memorandum.

¶6I. BACKGROUND

¶7Bert was tried and convicted under 21 U.S.C. § 841 for possessing, with intent to distribute, three controlled substances: cocaine, cocaine base and methamphetamine. *651Bert objected to the jury verdict form. Bert argued that the form conflicted with the plain language of 21 U.S.C. § 841 (b)(1)(A)(iii), because the form asked the jury whether it found that the substance or mixture involved in count one contained a “detectable amount” of cocaine base, while § 841 (b)(1)(A)(iii), unlike clauses (i), (ii) and (iv)-(viii), does not contain the phrase “detectable amount.”.1 The district court overruled Bert’s objection. The jury found Bert guilty of possession with intent to distribute on the cocaine, cocaine base and methamphetamine counts.

¶8Bert moved for acquittal on the cocaine base and methamphetamine counts for insufficient evidence, pursuant to. Federal Rule of Criminal Procedure 29(c). The district court denied the motion. However, the district court concluded that because the jury found that the mixture contained a “detectable amount” of cocaine base, and clause (iii) omitted the phrase “detectable amount,” the verdict supported sentencing only under the default simple possession provision, § 841(b)(1)(C), not under the possession with intent to distribute provision; § 841(b)(1)(A). This holding meant that Bert was not subject to a minimum sentence for his cocaine base conviction, as he would have been if sentenced under § 841(b)(1)(A).2

¶9II. ANALYSIS

¶10The district court’s holding was based on the court’s interpretation of § 841(b)(1)(A) and was a part of the order denying Bert’s Rule 29(c) motion. We review both statutory construction questions and Rule 29(c) orders de novo.3

¶11Section 841(b)(1)(A) mandates a minimum sentence of ten years for any mixture or substance that “contain[s] a detectable amount” of a prohibited drug, unless the drug is cocaine base.4 If the drag is cocaine base, the minimum sentence provision applies if the mixture or substance simply “contains” cocaine base.5 In other words, unlike clauses (i)-(ii) and (iv)-(viii) of § 841(b)(1)(A), clause (iii) does not require that the mixture or substance contain a “detectable amount” of cocaine base; only that the mixture or substance “contain” cocaine base.

¶12The district court held that this textual difference required the court to give force to the omission of the phrase “detectable amount,” because “where Congress includes particular language in one section of a statute but omits it in another section of the . same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”6 The court therefore held that the cocaine base verdict — in which the jury found that the mixture or substance contained a “detectable amount” of cocaine base — did not support a conviction under § 841(b)(l)(A)(iii). This ruling meant that *652Bert was not subject to a minimum sentence for his cocaine base conviction.7

¶13The district court did not determine what specific jury finding is necessary to support a conviction under clause (iii), but did implicitly recognize that the central issue is what quantity of cocaine base is required to support such a conviction.8 Strictly speaking, the court may not have needed to address this issue, given that the jury verdict relied exclusively on a finding that the district court had determined was, in any event, insufficient to support a clause (iii) conviction. This appeal requires us to determine what clause (iii) affirmatively requires, however.

¶14The district court’s conclusion — that clause (iii) is not triggered by a finding that a mixture contains a “detectable amount” of cocaine base — necessarily implies that clause (iii) requires something other than a .“detectable amount.” The only possibilities, are “more than a detectable amount” or “less than a detectable amount.” Criminal liability cannot attach if there is “less" than a detectable amount” — in other words, when no cocaine base can be detected. Thus, the issue becomes what constitutes “more than a detectable amount.” The parties have cited no authority or legislative history that answers this question, nor can we locate any.

¶15Thus, it falls to us to determine, on our own, what constitutes “more than a detectable amount.” Because anything more than a detectable amount is measurable,9 answering the question would necessarily require us to specify the minimum measurable cocaine báse content required under § 841 (b)(1)(A)(iii). Such an arbitrary quantitative determination is a quintessentially legislative function that courts are ill-equipped to make and should avoid.10

¶16However, were we to decline to designate such a cocaine base content, we would make it impossible to obtain convictions for possession of cocaine base with intent to distribute, because clause (iii) would lack a liability threshold. This course of [injaction would render clause (iii) meaningless, a result we should also avoid.11

¶17Thus, the district court’s reasoning inescapably leads to a choice between two unacceptable alternatives. We must therefore reject the district court’s conclusion that a jury finding that a mixture contains only a “detectable amount” of cocaine base does not support a conviction under clause (iii).12

¶18*653Accordingly, we conclude that we must read into clause (iii) the “detectable amount” qualifier. The Supreme Court has stated that “the meaning of a provision is clarified by the remainder of the statutory scheme ... [when] only one of the permissible , meanings produces a substantive effect that is compatible with the rest of the law.”13 This principle applies with particular force in this case. As previously discussed, we may not interpret clause (iii) to require “more than a detectable amount.” By the same token, we obviously cannot interpret it to be triggered by “less than a detectable amount.” Therefore, the only permissible way to interpret clause (iii) is to import the qualifier “der tectable amount” from the other clauses of § 841(b)(1)(A). This reading also gives clause (iii) a substantive effect compatible with § 841 generally.

¶19We also note that such a reading is consistent with the plain language of clause (iii). “Contain[s]” means “to have within: hold ... to consist .of wholly or in part: comprise, include ... enclose.”14 Thus, in common understanding, a mixture or substance “contains” cocaine base if there is any amount of cocaine base present. Accordingly, reading “contains cocaine base” as meaning “contains a detectable amount of cocaine base” is entirely consistent with the • common meaning of “contains,” and the plain language of clause (iii).

¶20Bert raises three other arguments in support of the district court’s ruling. Two are arguments that fail for reasons discussed in the memorandum filed contemporaneously with this opinion.15 Bert’s other argument is that § 841 is facially unconstitutional, an .argument foreclosed by United States v. Buckland,16 Finally, we disagree with the district court’s conclusion that the rule of lenity applies to *654this case. “ ‘The rule of lenity applies only if, after seizing everything from which aid can be derived, ... we can make no more than a guess as to what Congress intended.’ ”17 As our preceding discussion demonstrates, this is not such a case.

¶21III. CONCLUSION

¶22The district court erred in determining that the omission of the phrase “detectable amount” in § 841(b)(1) (A) (iii) meant that the jury verdict did not support sentencing under § 841(b)(1)(A). We therefore vacate the sentence and remand for resen-tencing.

¶23Convictions AFFIRMED, sentence VACATED, and REMANDED for resentenc-ing.